Public Bill Committee

[Mr. Jim Hood in the Chair]

Further written evidence to be reported to the House

H&SC 29 General Optical Council

Clause 91 ordered to stand part of the Bill.

Schedule 6

The Office of the Health Professions Adjudicator

Stephen O'Brien: I beg to move amendment No. 213, in schedule 6, page 132, line 4, leave out ‘If the Secretary of State so determines’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 214, in schedule 6, page 132, line 6, leave out ‘Secretary of State’ and insert ‘OHPA’.
No. 215, in schedule 6, page 132, line 13, leave out ‘Secretary of State’ and insert ‘OHPA’.
No. 218, in schedule 6, page 133, line 16, leave out ‘Secretary of State’ and insert ‘OHPA’.
No. 220, in schedule 6, page 133, line 19, leave out ‘Secretary of State’ and insert ‘OHPA’.
No. 221, in schedule 6, page 133, line 23, leave out ‘such period’ and insert ‘six months’.
No. 222, in schedule 6, page 133, line 24, leave out from ‘relate’ to end of line.

Stephen O'Brien: Welcome to another day of our deliberations; it continues to be a pleasure to serve under your chairmanship, Mr. Hood. I believe that we have copies of the Official Report of last Tuesday, when we debated the Ways and Means resolution on the Floor of the House, which relates to this group of amendments. Those hon. Members who are anxious to see the full detail of the arguments should apprise themselves of the record, which will save some time. The amendments seek to secure the operational independence of the office of the health professions adjudicator. As I speak, copies of the Official Report are arriving, and I refer hon. Members to column 796 of the Official Report, 15 January 2008, when we dealt with the Health and Social Care Bill Ways and Means resolution on the Floor of the House.
For the amendments to be complete and effective, the Committee should bear in mind that an amendment removing the Secretary of State’s responsibility for setting levels of remuneration and allowances for the chair and members of the OHPA is also required. With that caveat at the outset, amendment No. 213 would give the OHPA, rather than the Secretary of State, the power to determine whether, how and to what extent it pays or makes provision for the payment of pensions, allowances and gratuities to current or former chairs, or members of the OHPA.
Amendment No. 215 would allow the OHPA to determine the compensation that it would need to award. If the Minister were to smile upon the principle of the amendments—I hope that he has a sunny disposition this morning—an amendment would be needed to line 8 to give the OHPA the power to determine when it is right for a person ceasing to hold office as the chair of the OHPA to receive such compensation.
Amendments Nos. 218 and 220 would remove the power of the Secretary of State to direct the form in which the OHPA keeps its accounts and prepares its annual accounts. I note that amendments Nos. 217 and 219 are grouped for debate immediately after this group. They have a bearing here, and if the Chairman would like me briefly to mention them now, I will do so.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 217, in schedule 6, page 133, line 16, after ‘keep’, insert ‘auditable’.
No. 219, in schedule 6, page 133, line 20, after second ‘the’, insert ‘auditable’.

Stephen O'Brien: I am grateful. As my points on amendments Nos. 217 and 219 are brief, I will tack them on to my comments on the larger group of amendments under discussion. Amendments Nos. 217 and 219 are consequent to the removal of the Secretary of State’s power over the form of the accounts—I can see why they were in a separate group, as their effect might depend on a vote. I am extraordinarily hopeful that the Minister will smile upon the amendments and therefore this grouping makes sense. The amendments are to ensure that the OHPA keeps auditable accounts.
Amendment No. 221 would make the OHPA produce copies of its annual report within six months of the end of the year. There seems no reason for the period not to be enshrined here, other than to recognise that if the OHPA were unable, for good reason, to produce accounts within the specified period, its remedy would be, first, the force of law, and secondly, applying to have the publication of accounts postponed, although only for a short period. I cannot see why it is not appropriate to put a realistic time on the face of the Bill, as it would rightly reduce the Secretary of State’s power in the area and provide for clearer expectations. Amendment No. 222 would remove the power and discretion of the Secretary of State in the matter.
The General Medical Council is currently independent from Government, and the Government are seeking to remove its adjudication function. While we have discussed whether that is necessary for any reason other than public perception, the amendments deal with a different issue. If the OHPA is to be established, it should be on similar terms to the GMC in order to give it the confidence of the profession and the public. As the Bill is drafted, while the OHPA is independent of Government in, for example, regulating its own procedure—delineated in paragraph 11 of schedule 6—and while those appointments which it does not make itself are overseen by the Privy Council, it should be noted that in terms of its finances it has a duty to report to the Secretary of State. The Committee will remember that in her oral evidence on 8 January 2008, Official Report, column 38, Lady Justice Smith noted that she was “sympathetic” to the GMC’s point.
This measure makes even less sense given that the professions, through fees levied on the GMC and the General Optical Council, will foot the Bill, yet they will have no power over the operational effectiveness and value for money delivered by the OHPA. It is unfortunate that other than my hon. Friends on the Conservative Benches, who, I am pleased to say, were all present, the Minister and the Government Whip, there were no members of the Committee present for the debate on the Floor of the House last Tuesday on the Ways and Means resolution that made this levy possible. I note that the Liberal Democrat spokesman on health, who is not a member of this Committee, was there. I hope that the Committee has had a chance to catch up with the proceedings that took place on that occasion, and I hope that after that debate and these questions the Minister will reflect that the amendments are both appropriate and timely. We need to ensure that we underpin independence and put motivations and incentives in place for the OHPA not only to wish to take responsibility, but to have the chance to deliver on its responsibility in running an independent, but appropriate, organisation.
In addressing the amendments, I hope that the Minister will make it clear why the Bill states that this body should report to the Secretary of State, and I hope that he will also take the chance to explain the revelation made by the GMC during the oral evidence, that it was only in late November last year that the OHPA’s lack of independence was suggested by the Department in negotiations with the GMC.

Sandra Gidley: I will be brief in the hope that I have a voice left at the end of the day.
I understand the spirit in which amendments Nos. 213 to 215 and 221 to 222 have been tabled, and concerns have been raised about the independence of the OHPA from the Secretary of State. I have slightly less sympathy with amendments Nos. 218 and 220, which deal with the form that the accounts will be kept in. Presumably, some public money is involved in the organisation, and it is entirely right for the Government to have some direction over the clarity with which accounts are presented. I realise that amendments Nos. 217 and 219 were tabled to ensure the accounts will be auditable, which was an attempt to achieve clarity in another way, but it is right that, through the Secretary of State, Parliament has a chance to scrutinise the matter.

Ben Bradshaw: As the subject will probably take up much of this morning’s proceedings, as well as addressing the points raised by the amendments tabled by the hon. Member for Eddisbury, I want to make a few general remarks about the independence of the OHPA, which is a theme that runs though this morning’s clauses, schedules and amendments.
It is important that the Committee remembers that the status of such organisations is not defined by their name or definition, but by the powers given to them by Parliament. As a result of the powers that we intend to give the OHPA in the Bill, it is likely that the OHPA will be defined by the Office for National Statistics as an executive non-departmental public body, which is a type of arm’s length body. The GMC’s powers and the proposed powers for the OHPA are similar in many respects—for example, as the hon. Gentleman has acknowledged, both bodies have the power to make rules that are then subject to approval by Privy Council negative resolution procedure.
What does that mean in terms of independence? An ENDPB does not have to refer any of its professional judgments back to the sponsoring Department; it does not have its professional decisions overturned by the Department or Ministers; it does not have to explain to the Department why it has made any professional decision; and it does not have to give the Department details of its professional decisions. The key aspect of the independence of the OHPA is its panels and their independence of judgment. There is total independence in the panels’ professional decisions, and Ministers will have no power to interfere in any adjudication decision made by them.
As the hon. Member for Romsey has mentioned, however, the OHPA is a public body that will be set up with public money. Although it will mostly be funded by the professionals who use it, it is likely to receive some ongoing public money, which means that clear lines of accountability to Ministers and Parliament are important. The Committee and the GMC have expressed concerns, which were raised in the debate on the Ways and Means resolution, about having proper controls over the OHPA’s costs. That is precisely why we expect the OHPA to be an ENDPB, which is a tried and tested model that will allow the OHPA complete independence from Government in every aspect of the adjudication function and the Secretary of State and the Treasury to ensure that the fees charged are reasonable.
We could refer to plenty of models of successfully operating ENDPBs—for example, the Independent Police Complaints Commission and the Financial Services Authority. In the area of health, other examples include Monitor, the Appointments Commission, the Council for Healthcare Regulatory Excellence and the Healthcare Commission itself. All those bodies have demonstrated their independence from sponsoring Departments in decision-making processes.
The Secretary of State will have the power to make directions in a limited sphere and only with regard to payments and loans made to the OHPA by the Secretary of State. Let me state this clearly because it is one of the assurances that the leaders of the GMC sought: that is the only power of direction in the Bill that the Secretary of State has with regards to the OHPA; they will not be given a general power of direction, and the power to direct in schedule 6 is strictly limited to making payments and loans to the OHPA. As recently as last week, I had detailed discussions with the leaders of the GMC, who were reassured by that. The hon. Member for Eddisbury has referred to Lady Justice Smith’s support for the expressions of concern about independence, but I recall that when we asked what alternative Lady Justice Smith favoured, she did not suggest one, which was also true of the GMC in its evidence.
On appointments, GMC lay members are appointed by the Privy Council, although in practice, that is delegated to the Appointments Commission. As recommended in our White Paper, “Trust, Assurance and Safety”, that is being altered, so that all members of the GMC are appointed by the Privy Council. The Bill provides for the Privy Council to appoint the chair, the non-executive members and the first executive members, and it is expected that the Privy Council will make use of the Appointments Commission for those positions. In that respect, there will be no difference between the appointment of GMC members and the OHPA members. I hope that that is the reassurance that hon. Members are seeking on the independence of the appointments system.
The amendments seek to remove the power of the Secretary of State to make determinations on remuneration and allowances for chairs and members, pensions and the form of the OHPA’s accounts. For the reasons that I have just described, it is important that the Secretary of State has those powers. In the debate on the Ways and Means resolution, Opposition Members emphasised the importance of proper financial oversight, and one of the main concerns at the GMC was that the level of fees would not simply escalate.
Amendments Nos. 221 and 222 specify the time scale with which the accounts should be laid, but we do not think that the independence of the OHPA should be fettered in that regard. Amendments Nos. 217 and 219 concern auditability. We recognise that there needs to be proper financial propriety and accountability, but the accounts of public bodies are auditable simply by the virtue of their existence. In addition, one of the mechanisms by which that is guaranteed by the Bill is the role of the Comptroller and Auditor General in carrying out an audit of the annual accounts. That means that all the OHPA’s financial affairs will be subject to audit, and nothing will be exempt from that requirement. We do not think that the amendment is necessary, so I ask the hon. Gentleman to withdraw it.

Stephen O'Brien: It is interesting to have the report on the further discussions that the Minister had with the GMC. I am glad that he had them, not least in the light of the comments made by Lady Justice Smith during the oral evidence session. I fully accept his general statement of principle that the name of a body does not describe whether it is independent—it is the powers granted to it, and the accountabilities and authorities that are contained within its strategic and operational procedures. I also accept that nobody is arguing for an alternative model and that the issue concerns the current framework.
Once one accepts that the OHPA will come into existence and that it will be carved out of the current GMC, it becomes important as a matter of principle to decide, having established that model, the expectations of its true ability to be unfettered. Regardless of how unfettered such a body might be, if public money is used, there must be accountability, not least towards moneys, and the Liberal Democrat spokesman addressed two of the amendments on that basis.
I am disappointed that the Minister has decided that amendment No. 221, which would make the OHPA produce copies of its annual accounts within six months of the year end, is over-fettering. That seems to be the one area where one should lay out the expectations on being accountable for public money and put an expectation of time upon that. In many ways, that gives the cover for all the rest to be much more independent, because one would have an approximate time period between the operations and the accountability by ensuring that accounts were produced and presented within six months, which is a really tight time frame in accounting terms.
I am therefore not persuaded that the Minister has demonstrated that there is a true prescription for independence from Government. We should not underestimate how much the GMC has delivered on success. That is a different approach with the OHPA than has hitherto been the case, and it has come about not because the GMC was regarded as having failed, but to retain the best parts of what it has been able to deliver in this area, including independence from Government. There is an opportunity to maintain trust with the public and to retain the confidence of the profession. It is vital that we have that complementariness in the process. On that basis, I will put the amendments to the test, including amendments Nos. 217 and 219 if that is acceptable, by seeking to divide the Committee on amendment No. 213.

Jimmy Hood: I have already indicated that it is permissible to discuss amendments Nos. 217 and 219 with this group of amendments.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 216, in schedule 6, page 132, leave out lines 19 to 22.
This is a probing amendment, so I shall not trouble the Committee with a Division. It is useful to note that members of the OHPA can be members of the civil service pension scheme, which further highlights the closeness of the OHPA to the Government. I am also concerned that the Government are voting yet another liability on the civil service pension scheme. As the Committee will be aware, the Chief Secretary to the Treasury is still too embarrassed to reveal to the House the state’s liability for public sector pensions. The estimate is a year overdue, but actuarial firm Watson Wyatt estimates that the liability today could be as high as £960 billion. Given the size of the liability, I am concerned that the Bill puts no limit on the sum that the Minister for the Civil Service might determine.
As I noted in the debate on the Ways and Means resolution, the OHPA is effectively a tax-generating body through the combination of its fee structure and its dependence on the Government. In it, we see doctors, opticians and associated professionals funding a Government body directly. Not only are there no effective checks and balances on how the OHPA spends its money—the Committee is effectively examining a blank cheque that the Government are writing but which the professionals will have to pick up—but what is there to prevent the Minister for the Civil Service from squeezing extra money out of the OHPA, and consequently doctors, to pour into the public sector pensions black hole?

Ben Bradshaw: As I am sure the hon. Gentleman is aware, it is custom and practice for executive non-departmental public bodies to be able to join the civil service pension scheme, which does not mean that their employees become civil servants. The problem with the amendment is that it removes the requirement for the OHPA to make payments to the Minister for the Civil Service, although it would be able to receive benefits from the civil service pension scheme, which it could join by virtue of paragraph 15 without being required to make a payment into it. In our view, the amendment is flawed, and it is perfectly normal for people who work for ENDPBs to be eligible to join the civil service pension scheme.

Stephen O'Brien: I have said that the amendment is probing, and the point is on the record. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 223, in schedule 6, page 133, line 42, at end insert—
‘(c) The regulatory bodies.’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 224, in schedule 6, page 134, line 5, after ‘Council’, insert ‘and health regulators’.

Stephen O'Brien: Amendment No. 223 seeks to include the regulatory bodies in the list of persons to whom the OHPA must send copies of its annual accounts. Amendment No. 224 gives the regulatory bodies, in addition to the Privy Council, the power to direct the OHPA as to matters dealt with in the report. The amendments do not establish what we are truly seeking—effective control of the operating costs of the OHPA by the bodies, and ultimately the professions, which fund it. It would be wrong of the Committee to propose a cap on OHPA spending, because it must have the resources to adjudicate fitness-to-practise cases in a timely and effective manner. Having said that, there need to be more effective checks and balances to potential profligacy than the Bill currently provides. As the Committee knows, full GMC registration on the medical register will rise to £390 a year with effect from April 2008, having been frozen at £290 per annum since 2002, and GOC registration stands at £169 pounds per annum. Those costs will presumably go up again given the creation of the OHPA, because while the adjudication costs should remain substantially the same, two bodies invariably cost more than one to run. That is not rocket science, and it would be helpful for the Minister to indicate by what amount he expects the fees to escalate.
During the oral evidence-taking session, Sir Graeme Catto noted that while, in his opinion, the GMC did not think that the move to the civil standard of proof would have, in terms of numbers
“any significant effect at the serious end of the spectrum...There may be an impact on doctors whose practice has failed to a lesser extent”
although,
“any impact is likely to be small”.
Will the Minister tell the Committee what sort of increase the Department is expecting in the number of adjudications, as that obviously plays into any debate on the costs of the OHPA?
In its written evidence, circulated to the Committee yesterday, the GOC noted
“the provisions of paragraph 19 of Schedule 6 as to financial accountability. There are provisions elsewhere in the Bill allowing representations to be made to OHPA regarding the fees paid to OHPA by the regulators. However, there is no mechanism for the regulators to take further any concerns they may have over excessive expenditure (hence higher fees) should those representations not be met with an adequate response.... We acknowledge that OHPA must be independent of, and not accountable to, the regulators. There should, however, be a mechanism to ensure proper oversight of OHPA’s expenditure that takes into account the views of the regulators.”
In support of the amendments, it also said:
“We would expect the regulators to be provided with OHPA’s annual accounts and business plan, and to be invited to provide comments on those documents to the Secretary of State. We would welcome these arrangements to be provided for in the Bill. If they are not to be provided for in the Bill, we would expect to see these in the regulations to be made under new clause 7(1)”.
Would the Minister now tell us what the running costs, as a distinct item from the adjudication costs of the OHPA, will be? Will that come out of the fees, or from a Government grant? In the debate on the previous group of amendments, the Minister said that it would be, at least in part, a publicly funded body. I hope that the amendment and a direct question will flush out from him precisely what will be the split between those costs that will be recoverable through fees and those that will effectively be a subvention on the public purse. I also hope that there are sustainable expectations that it will remain a public subvention rather than something that will be clawed back from doctors themselves over time, notwithstanding that in our view the Government have not established that the OHPA is effectively a public body rather than an independent body.
What powers will the profession and the current councils have over value for money issues with the OHPA? What protection will the profession have from continual fee hiking? What guarantees are there that the Committee is not voting for a blank cheque and what increase in adjudications will the move to the civil standard bring? Some questions about the Privy Council, to which the Minister alluded in his more general remarks at the beginning of the previous group of amendments, may be more appropriate for a stand part debate. Therefore, I move the amendments on the basis of the arguments just advanced.

Sandra Gidley: I have no problem with amendment No. 223. Given the arm’s-length, but hopefully in some way joined-up, relationship between the regulatory bodies and the OHPA, it is important that the regulatory bodies receive the reports.
I have slightly more difficulty with amendment No. 224. I agree with the hon. Gentleman that there needs to be some mechanism to scrutinise spending. He mentioned the increase in fees of the GMC and I know from my own profession that provisions in the section 60 order were responsible for a big fee increase that did not go down well among the profession. I assume that it is the same with doctors. Having said that, the mechanism advanced by the hon. Gentleman is rather over-prescriptive and although he wants greater financial clarity, it seems that the amendment as drafted provides room for professional games playing.

Ben Bradshaw: It is worth reminding the Committee at this stage that the genesis of the OHPA was concerns resulting from the Shipman inquiry about the independence of the adjudication system from the medical profession. The hon. Gentleman seemed to be more concerned about independence from Government. I warn him that in pushing the amendments—I will come back to this in a moment—he is taking us back into a sphere where the organisation would not be as independent from the profession as I am sure he would want it to be.
On amendment No. 223, which is about sending a copy of the report to the relevant regulatory bodies, clause 100 already requires the OHPA to make public information relating to it and the exercise of its functions. It is anticipated that, in line with best practice, the publication of its annual reports will be carried out in that manner. We do not think that requiring it additionally to send its reports to the regulatory bodies is necessary.
Amendment No. 224 seeks to confer the power to direct the content of the OHPA annual report on to the regulatory bodies. We do not think that it would be appropriate for the regulatory bodies to direct the OHPA, which we are setting up to be independent. It is important that the OHPA’s decisions are seen to be made in an independent manner. The whole point is to set up a body that is independent from the regulatory bodies and therefore from the professions. Even if that problem could be overcome, we do not think that it would be appropriate for the regulators that use the services to say what information the OHPA should provide in its annual report. Although the regulators may use the OHPA services, it should not be accountable to them for how it discharges its adjudication functions per se. That is dealt with through the power of appeal to the High Court that the regulators have if they are concerned that the OHPA is making decisions that are too lenient. On those counts I hope that the hon. Gentleman is reassured.
On fees, which we discussed at rather more length than most of us were expecting during the debate on the ways and means resolution, I indicated that the estimated current cost of the General Medical Council’s adjudication is around £11.5 million a year. That would be apportioned between the regulatory bodies using the OHPA’s services. However, I went on to add that the GMC is currently engaging a firm of financial advisers, which is undertaking an independent assessment of the costs, and it expects that report to be available by the end of January. We shall look at that very carefully. As I also made clear in the ways and means debate—and this was one of the GMC’s concerns—the Government have said that we will meet the set-up and transitional funding costs of establishing the new organisation. We will also help out where High Court referrals could create a potential burden, such as when the appeals courts overturn a decision. We do not think that it would then be fair to expect those costs to be met by the GMC, the equivalent organisation or their members.
If there is a sudden increase in costs—one could imagine a Shipman or equivalent type of inquiry—there is a power in the Bill for the level of fees to be varied throughout the year, for them to be reviewed and for the regulatory bodies to appeal against decisions. The fee setting will also be subject to full consultation when the regulations are discussed.

Stephen O'Brien: The Minister said that the report is due by the end of the month, and I hope that it will be available to members of the Committee, as much as anybody else, by the time we get to Report. That might be quite instructive. I think that I have made the points that are important to highlight, so on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ben Bradshaw: I beg to move amendment No. 94, in schedule 6, page 134, line 6, at end add—

‘Seal and evidence
The application of the seal of the OHPA must be authenticated by the signature—
(a) of any member of the OHPA, or
(b) of any other person who has been authorised by the OHPA (whether generally or specifically) for that purpose.
A document—
(a) purporting to be duly executed under the seal of the OHPA, or
(b) purporting to be signed on behalf of the OHPA,
is to be received in evidence and, unless the contrary is proved, taken to be so executed or signed.’.
Archaic as it may seem, the amendment allows the OHPA to have an official seal.

Stephen O'Brien: I am a bit surprised to see this amendment now. Perhaps it was an oversight. I do not want to embarrass anybody by saying that they need to own up to that, but there have been a tremendous number of changes to the use of seals in terms of both public and private limited companies. I dare say that, for an organisation such as this, this may be more symbolic than necessarily being available in order to bind the body. If there is something much more legally significant than appears in this simple amendment, I hope that the Minister will make us aware of it.

Amendment agreed to.

Question proposed, That this schedule, as amended, be the Sixth schedule to the Bill.

Stephen O'Brien: I promised a short debate on the schedule, Mr. Hood, and I would not want to disappoint you. The Privy Council has various powers under schedule 6, notably the appointment of the chair, non-executive members, the first executive members, removal of members and regulations concerning those responsibilities. While the explanatory notes state, in relation to the Council for Healthcare Regulatory Excellence, that:
“The Privy Council and the Secretary of State may, if they wish, delegate the selection process to the Appointments Commission”,
they make no mention of either the Appointments Commission, or the commissioners’ code of practice in relation to OHPA appointments. Does the Minister agree that the councils should have a right of recommendation to the Privy Council for executive and non-executive members, rather than the power of recommendation lying solely with the Department? Can he also clarify the actual process that the use of “Privy Council” signifies in schedule 6? That would be a helpful clarification before we decide whether the schedule should stand part.

Ben Bradshaw: In response to the last question, the reason for that system is that it most closely replicates the existing system of appointments to the GMC. The OHPA will be the UK-wide body, hence we have the Privy Council route; the Privy Council covers the whole of the UK. The professions, including the GMC, were concerned that that should be the case. As I said earlier, we have included provisions in schedule 10 that allow the Privy Council to delegate its powers of appointment regarding the board members, through directions. We have done that following discussions with the Privy Council and I would fully anticipate that that would be the case.

Question put and agreed to.

Schedule 6, as amended, agreed to.

Clause 92 ordered to stand part of the Bill.

Schedule 7

Adjudication functions under Medical Act 1983 and Opticians Act 1989

Sandra Gidley: I beg to move amendment No. 268, in schedule 7, page 135, line 6, leave out ‘must’ and insert ‘may’.
The schedule inserts a new section into the Medical Act 1983 that provides for the GMC to publish guidance on what are known as indicative sanctions—that is, what sort of sanctions should be applied to the doctor depending on the facts found by the adjudication panel. In addition, the OHPA must take account of the guidance and new section 40A, which is set out in paragraph 11, provides the GMC with powers to refer decisions to the relevant court on certain grounds such as leniency.
Although it is intended that the OHPA will be a separate and independent body with an overall adjudication function, the new provisions I have outlined will allow the GMC to continue to determine the sanctions that should apply in fitness to practise decisions and the OHPA must take account of such guidance in making its determinations. Further, the GMC will be able to challenge decisions by the OHPA panels on a number of grounds. The amendment is an attempt to provide the OHPA with greater independence. The Minister spoke earlier about the need for that, and the fact that it was highlighted by the Shipman case, but it is not clear in the Bill that the OHPA will be as independent as it should be.

Ben Bradshaw: Schedule 7 inserts a new section into the Medical Act 1983, allowing the regulator to publish guidance on the factors affecting the registrant’s performance and the appropriate sanctions. The provision of such guidance follows Lady Justice Smith’s recommendations as part of the Shipman inquiry:
“Urgent steps should be taken to develop standards, criteria and thresholds so that decision-makers will be able to reach reasonably consistent decisions at both the investigation and the adjudication stages of the FTP procedures and on restoration applications.”
Under schedule 7, the OHPA will be required to take account of such guidance in exercising its functions; the guidance will not be binding and it will make its final decision based on the facts of each individual case. The amendment would remove the requirement on the OHPA to take account of the guidance and replace it with an optional duty to do so.
The GMC has and will retain responsibility for setting and maintaining the standards required of doctors. The guidance on the standards is published as good medical practice and is widely regarded as setting the international standard for medical practice. The GMC currently publishes guidance for use by its fitness to practise panels when considering what sanctions to impose following a finding that the fitness to practise of a doctor may be impaired. Currently, the medical and lay panellists appointed to sit on the panels exercise their own judgments in making decisions, but they must take into consideration the standards of good practice that the GMC has established, which have been drawn up—and will continue to be drawn up—after wide consultation, and which reflect what society expects of doctors.
To allow the OHPA discretion as to whether it will take account of that guidance would, we believe, be likely to lead to confusion and possibly even challenge about the conduct and outcome of cases. We think that it is right and proper that the OHPA should take account of good practice guidance, which is after all the basis on which the cases will be put before its panels. That is why we have placed the obligation on the OHPA in the Bill. As I have said, the panels will not be obliged to follow rigidly the guidance published, but they must take account of it. Given those reassurances, I hope that the hon. Lady will feel able to withdraw her amendment.

Sandra Gidley: I thank the Minister for the clarification. It seems that the Bill as drafted is not as prescriptive as I had originally envisaged, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ben Bradshaw: I beg to move amendment No. 95, in schedule 7, page 135, line 8, leave out
“rules made by virtue of paragraph 5A(3)”
and insert ‘paragraph 5A(3E)’.

Jimmy Hood: With this it will be convenient to discuss Government amendments Nos. 96 to 116 and Nos. 120 and 121.

Ben Bradshaw: The amendment will enable the GMC to refer to the OHPA cases where a registrant fails to submit to, or comply with, an assessment of their performance in cases involving fitness to practise.

Amendment agreed to.

Amendments made: No. 96, in schedule 7, page 135, line 15, after ‘“the Adjudicator”,’ insert—
‘( ) after paragraph (d) insert—
“(da) decisions of the Adjudicator to make a direction under paragraph 5A(3E) of Schedule 4 to this Act and decisions of the Adjudicator under section 35D below that relate to such a direction;”,’.
No. 97, in schedule 7, page 136, line 3, leave out from ‘subsection (4)’ to end of line 4 and insert—
‘(a) for “a Fitness to Practise Panel have” substitute “the Adjudicator has”, and
(b) in paragraph (c) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.
No. 98, in schedule 7, page 136, line 22, leave out sub-paragraph (11) and insert—
‘(11) In subsection (9)—
(a) in paragraph (a)(iii) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”, and
(b) in paragraph (b) for “a Fitness to Practise Panel” substitute “the Adjudicator”.’.
No. 99, in schedule 7, page 136, line 25, at end insert—
‘( ) In subsection (11)(b) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.
No. 100, in schedule 7, page 136, line 40, after ‘(2)’ insert—
‘(a) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”, and
(b) ’.
No. 101, in schedule 7, page 136, line 42, leave out sub-paragraph (3) and insert—
‘(3) In subsection (3)—
(a) in paragraph (a)—
(i) in sub-paragraph (i) after “10” insert “or 10A”, and
(ii) omit sub-paragraph (ii), and
(b) in paragraph (b) for “paragraph 5A(4) of that Schedule” substitute “paragraph 5A(5) of Schedule 4 to this Act”.’.
No. 102, in schedule 7, page 137, line 26, leave out ‘rules made by virtue of paragraph 5A(3)’ and insert ‘paragraph 5A(3E)’.
No. 103, in schedule 7, page 137, line 41, leave out ‘rules made by virtue of paragraph 5A(3)’ and insert ‘paragraph 5A(3E)’.
No. 104, in schedule 7, page 139, line 37, at end insert—
‘ In section 41C of the 1983 Act (effect of directions or orders on a licence to practise), in subsection (1), for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.
No. 105, in schedule 7, page 140, line 11, leave out ‘paragraphs (a) and (b)’ and insert ‘paragraph (a)—
(i) ’.
No. 106, in schedule 7, page 140, line 12, at end insert—
‘(ii) in sub-paragraph (ii) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”,’.
No. 107, in schedule 7, page 140, line 12, at end insert—
‘( ) in paragraph (b) for “a Fitness to Practise Panel” substitute “the Adjudicator”, and’.
No. 108, in schedule 7, page 142, line 16, leave out from beginning to end of line 21 and insert ‘omit sub-paragraphs (3) and (3A),’.
No. 109, in schedule 7, page 142, line 21, at end insert—
‘( ) after sub-paragraph (3A) insert—
“(3B) If the Registrar is of the opinion that a person who is the subject of an assessment of the standard of the person’s professional performance—
(a) has failed to submit to the assessment, or
(b) having submitted to the assessment, has failed to comply with reasonable requirements imposed by the Assessment Team,
the Registrar may refer the matter to the Adjudicator.
(3C) If the Investigation Committee are of the opinion that a person who is the subject of an assessment of the standard of the person’s professional performance—
(a) has failed to submit to the assessment, or
(b) having submitted to the assessment, has failed to comply with reasonable requirements imposed by the Assessment Team,
the Investigation Committee may direct the Registrar to refer the matter to the Adjudicator and, on receipt of the direction, the Registrar shall make such a reference.
(3D) The Registrar shall without delay serve on the person who is the subject of the assessment notification of the making of a reference to the Adjudicator under sub-paragraph (3B) or (3C).
(3E) Where a matter is referred to the Adjudicator under sub-paragraph (3B) or (3C), the Adjudicator may, if it thinks fit—
(a) direct that the person’s registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 12 months as may be specified in the direction; or
(b) direct that the person’s registration shall be conditional on the person’s compliance, during such period not exceeding 3 years as may be specified in the direction, with such requirements so specified as the Adjudicator thinks fit to impose for the protection of members of the public or in the person’s interests.
(3F) Where, under sub-paragraph (3E), the Adjudicator gives a direction for suspension or a direction for conditional registration the Registrar shall without delay serve on the person concerned notification of the direction and of the person’s right to appeal against it under sub-paragraph (5).
(3G) While a person’s registration in the register is suspended by virtue of a direction under sub-paragraph (3E)—
(a) the person is to be treated as not being registered in the register notwithstanding that the person’s name still appears in it, but
(b) sections 31A, 35C, 35CC, 35D, 35E and 39 are to continue to apply to the person.”’.
No. 110, in schedule 7, page 142, line 24, at end insert—
‘( ) for “by virtue of sub-paragraph (3) above” substitute “under sub-paragraph (3E)”,’.
No. 111, in schedule 7, page 142, line 27, at end insert ‘, and
( ) after sub-paragraph (5) insert—
“(5A) Subject to paragraph 9 below, an appeal under sub-paragraph (5) must be brought before the end of the period of 28 days beginning with the date on which notification of the direction was served under sub-paragraph (3F).”’.
No. 112, in schedule 7, page 142, line 40, leave out from ‘sub-paragraph (1)’ to end of line and insert—
‘(a) after “39(2),” insert “40A(9),”, and
(b) after “this Act” insert “or paragraph 5A(3D) or (3F) above”.’.
No. 113, in schedule 7, page 142, line 40, at end insert—
‘( ) In paragraph 9—
(a) in paragraph (a) after “this Act” insert “or paragraph 5A(3F) above”, and
(b) after “section 40 of this Act” insert “or (as the case may be) paragraph 5A(5) above”.’.
No. 114, in schedule 7, page 142, line 42, at end insert—
‘( ) After paragraph 10 insert—
“10A (1) A direction for suspension or for conditional registration given by the Adjudicator under paragraph 5A(3E) above shall take effect—
(a) where no appeal under paragraph 5A(5) above is brought against the direction within the time specified in paragraph 5A(5A) above, on the expiration of that time;
(b) where such an appeal is so brought but is withdrawn or dismissed for want of prosecution, on the withdrawal or dismissal of the appeal;
(c) where such an appeal is so brought and is not withdrawn or dismissed for want of prosecution, if and when the appeal is dismissed.
(2) Where the time for appealing against a direction is extended by an authorisation under paragraph 9 above—
(a) sub-paragraph (1) shall apply to the direction as if the reference in paragraph (a) to the time specified in paragraph 5A(5A) above were a reference to that time as so extended; and
(b) if the authorisation is given after the expiration of the time specified in paragraph 5A(5A) above, the direction shall be deemed not to have taken effect on the expiration of that time,
and any reference in this Act to the time when such a direction takes effect in accordance with this paragraph shall be construed accordingly.”’.
No. 115, in schedule 7, page 142, line 42, at end insert—
‘( ) In paragraph 11, in sub-paragraphs (1) and (3)—
(a) after “section 35D(2) of this Act” insert “or paragraph 5A(3E) above”, and
(b) for “that section” substitute “section 35D”.’.
No. 116, in schedule 7, page 142, line 42, at end insert—
‘( ) In paragraph 12 for “rules made by virtue of paragraph 5A(3) of this Schedule” substitute “paragraph 5A(3E) above”.’.—[Mr. Bradshaw.]

Ben Bradshaw: I beg to move amendment No. 117, in schedule 7, page 148, line 11, at end insert—
‘ After section 23C of the 1989 Act insert—
“23CA Assessments
(1) If the Adjudicator considers (on reasonable grounds) that it would be of assistance to it, in dealing with any proceedings before it, for there to be an assessment of—
(a) the standard and quality of the work done or being done by the person to whom the proceedings relate (“P”); or
(b) the health, or specific aspects of the health, of P,
the Adjudicator may request the registrar to arrange for an assessor to be appointed to report on the standard and quality of P’s work or (as the case may be) on P’s health or specific aspects of P’s health.
(2) On receipt of a request under subsection (1), the registrar shall arrange for one or more assessors to be appointed in accordance with rules made by the Council.
(3) The Council may make rules about the carrying out of the assessment and the making of the report.
(4) If P fails to submit to, or co-operate with, the assessment the Adjudicator may draw such inferences from P’s failure as it considers appropriate.
(5) This section does not apply if the person to whom the proceedings relate is a body corporate.”’.

Jimmy Hood: With this it will be convenient to discuss Government amendments Nos. 118 and 119.

Ben Bradshaw: The amendments do what the previous ones did, but with relation to the Opticians Act 1989.

Stephen O'Brien: Briefly, both in relation to these amendments and the previous ones: is there a reason why they have appeared in the Bill now, rather than at the time of its original publication?

Ben Bradshaw: We were still in discussion with the relevant regulatory bodies about the details.

Amendment agreed to.

Amendments made: No. 118, in schedule 7, page 150, line 39, at end insert—
‘ In section 33 of the 1989 Act (default powers of Privy Council), in subsection (3)(b), after “23C,” insert “23CA,”.’.
No. 119, in schedule 7, page 150, line 39, at end insert—
‘ In section 34 of the 1989 Act (subordinate legislation procedure), in subsection (2), after “23C” insert “or 23CA”.’.—[Mr. Bradshaw.]

Schedule 7, as amended, agreed to.

Clause 93

Fitness to practise panels

Stephen O'Brien: I beg to move amendment No. 204, in clause 93, page 46, line 6, after ‘a’ insert ‘legally qualified’.
The purpose of the amendment is to make only those who are legally qualified eligible to be chairs of fitness to practise panels. We note that under schedule 6, the chair of the OHPA must be legally qualified and that clauses 96 and 97 make provision for legal and clinical assessors respectively to give relevant advice to fitness to practise panels. I ask the Committee to bear in mind the fact that there is a cross-referral from clause 93 to clause 104, which is the standard of proof clause. Due to the way in which the Bill is drafted, we find ourselves debating this element before we come to the standard of proof element, but I am sure that members of the Committee will recall the evidence of Lady Justice Smith in relation to both matters, particularly on understanding the question of grading the proof required when moving to the civil standard of proof. That would not pose problems for somebody who was legally qualified, as I will come on to when we debate clause 104, but she expressed concern about the chairs of the panels not being legally qualified.
Lady Justice Smith particularly noted in her oral evidence that
“adjudication panels should be chaired by legally qualified people.”
She went on to say:
“Chairing a disciplinary tribunal is a job for a legally qualified person, not a lay person. Legally qualified people who appear in front of such tribunals are capable of running rings round the tribunal if no one on the panel is legally qualified. The proceedings would take a lot longer than they needed to if there was not a legally qualified chair. You would achieve a much higher standard of reasoned decision if you had a legally qualified chair because writing a judgment, which is what such a decision is, is a job that requires professional expertise.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
She was referring to recommendation 79 in her fifth report of the Shipman inquiry, which states:
“In the event that the GMC retains control of the adjudication stage, it should appoint a number of legally qualified chairmen who should, as an experiment or pilot, preside over the more complex FTP panel hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits, whether in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and/or fewer appeals.”
I note in particular that the recommendation is conditional on the GMC retaining control of the adjudication stage, which of course it is not, and that pilots are sought on more complex hearings. At the time of the inquiry, she also explored the possibility with Sir Donald Irvine, the former president of the GMC, who noted:
“I think the arguments are pretty closely balanced, but I think on balance I would stick with a non-legally qualified Chairman provided that people are well trained and that there is a very good legal assessor.”
In her oral evidence, Lady Justice Smith brought out the issue of having if not legally qualified chairs, at least a legally qualified person on the panel, which would fit into the Bill most obviously at clause 93(2). While clause 96 makes provision for a legal assessor, there is no requirement for fitness to practise panels to have a legal assessor in full-time attendance. During my examination of the Minister in an evidence-taking session, he said that the Government would be willing to look at the issue of legally qualified chairs and were
“certainly happy to go away and think a bit further about that”
if there was wide concern in the Committee. The Minister also suggested that
“the GMC was a bit iffy about that issue”.
Or was it sniffy?

Ben Bradshaw: Iffy.

Stephen O'Brien: I leave it to be determined over time and the purposes of history. I think we all heard sniffy, but I am glad to see that the Official Report states “iffy”, so everybody is happy. The Minister said,
“the GMC was a bit iffy about that issue because its view was that in some cases it is important—particularly in complex medical cases”—
Let us not forget that many are—
“that the chair has medical rather than legal expertise.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 98, Q238.]
I would be grateful, therefore, if he will give me the reference for that assertion as I cannot see it in the GMC’s evidence. It is vital to make the link between what the Minister said and the GMC’s evidence on that point. As I read it, the GMC was more at pains not to give extra work to lawyers—as someone who has not practised for 19 years, that comment cannot be levelled at me—and to point out the constantly high quality of the decisions that its fitness to practise panels make.
I have a helpful communication from my hon. Friend the Member for Woking (Mr. Malins) who is both a lawyer and sits on the GMC panel. He makes the following point, which is important in case anyone thinks that the amendment is a veiled criticism of the calibre of the people who are currently chairing the panels:
“I have sat under about a dozen chairmen. One of these is, as it happens, an ex clerk to the Justices and a solicitor and he is tip top. Under him, cases rattle on at a correct and proper pace.”
He compliments the person and goes on to say that they are doing well. I will not read out the whole letter, but my hon. Friend points out how essential training is—not least in matters of procedure and law—for the system to work well. Considering the new scheme that the Government have put in place and Lady Justice Smith’s concern about the absence of legally qualified chairmen, we have reached the point where if we are to make any difference to and improve what the GMC has done, it should be without criticism of the past because that would be both disproportionate and unfair. The amendment provides something extra to enable us to ensure that future prospects are improved.
Finally, in response to my questions on the civil standard of proof, when Lady Justice Smith prayed in aid for her argument in favour of legally qualified chairman she said:
“How the measure works in practice will require considerable training. That is one of the reasons... for having a legally qualified chairman. The chairman will understand how it works. If you tell a lay person how to apply the sliding or variable standard of proof, they might find themselves in some difficulty, but a lawyer would not.”——[Official Report, Health and Social Care Public Bill Committee, 8 Jan 2008; c. 40, Q71.]
In conclusion, although I thank the Minister for his earlier willingness to consider the issue more closely, I have shown that a number of considerations need to be addressed: the change that the creation of the OHPA delivers, the impact and interpretation of the civil standard of proof, the complexity of the case before the panel and the length of time it takes to conclude a panel.
It was the GMC’s understanding that the Bill did not preclude the selection of legally qualified chairs. I believe that to be true, but I would be grateful if the Minister could confirm it. However, for the legally qualified person to be eligible to chair, they would have to be on either the lay members list or the professional members list, so they have two eligibility hurdles to leap, rather than just one. Would it not be sensible for the Bill to make some provision for future regulations concerning either a legally qualified list or a demarcated legally qualified constituency in both lists?
Given the evidence I have laid before the Committee and the advice of such wise heads, it would be advantageous for the Department to follow Lady Justice Smith’s original recommendation and at least set up a pilot to establish whether legally qualified chairs make a substantial difference. If the Minister is amenable to that idea, the Bill should be framed to reflect most effectively the outcomes of those pilots.
I hope the Minister recognises that the hearings could be made more efficient through the use of legally qualified chairs. I also hope he recognises the power of Lady Justice Smith’s contention that the silver standard of proof would be better administered by a legally qualified chair and that it might be useful to pilot that.

Sandra Gidley: I support the aim of the amendment. As the hon. Gentleman mentioned in his concluding comments, the clause as drafted has a lay list and a professional list. There seems to be no provision for the inclusion, even in the lay list, of someone who is legally qualified. Consequential amendments are needed if the principle of that argument is approved.
I, too, was taken by Lady Justice Smith’s oral evidence to the Committee. I do not want to repeat what the hon. Gentleman said, but the following comments of Lady Justice Smith are worth referring to:
“I believe in horses for courses and in professional expertise being matched to the nature of the tasks in hand. Chairing a disciplinary tribunal is a job for a legally qualified person, not a lay person.”
I assume by that she means a medically qualified person.
“Legally qualified people who appear in front of such tribunals are capable of running rings round the tribunal if no one on the panel is legally qualified. The proceedings would take a lot longer than they needed to if there was not a legally qualified chair. You would achieve a much higher standard of reasoned decision if you had a legally qualified chair because writing a judgment, which is what such a decision is, is a job that requires professional expertise.”——[Official Report, Health and Social Care Public Bill Committee, 8 Jan 2008; c. 37-8, Q64.]
I hold no particular brief for the legal profession, and I am not sure that lawyers were the best example to choose—a lot of people are unhappy with some of the fitness to practise decisions, but we are not here to discuss that. However, I was persuaded by the argument that the proposal would save time and be more effective, because somebody who has intimate knowledge of the law would be ahead of any panel, however well trained it was. There is always flux in the new panels as people usually serve on them only for a certain length of time.

Jeremy Wright: Does the hon. Lady agree that one of the other advantages of having a legally qualified chairman would be not only legal experience but judicial experience, which is highly likely in someone experienced enough to do that job?

Sandra Gidley: That is a helpful point. I was about to conclude my remarks by saying that shorter, sharper proceedings would help: justice would be seen to be done, and somebody with overall knowledge of the way that the justice system works, with the skills set to harness the arguments and present them in a reasonable form, should not be dismissed lightly. Even if the Minister is not inclined towards the amendment, I hope that he looks further at the provision. I was persuaded by Lady Justice Smith that having only legally qualified advisers would not be enough.

Ben Bradshaw: As I have indicated, we agree with what Lady Justice Smith said and that a legal chair might add some discipline to proceedings, which could be helpful in lengthy and complex cases. However, we are not convinced that the panel would need a legally qualified chair in every case of fitness to practise, as the amendment would require.
I will give a couple of examples that might be helpful. For instance, if the issue at stake is the physical or mental health of the practitioner, one might argue that it would make more sense to have a medically qualified, rather than legally qualified, chair. A legally qualified chair would probably be unnecessary in review hearings where the panel is considering whether continuing restrictions are required. The same applies to conviction cases where the panel considers a case that has been handled in the courts, or in determination cases where the panel is considering a decision by another regulator, perhaps one from abroad. Findlay Scott referred to those concerns in his evidence to the Committee. He did not specifically say that there may be cases where a medically qualified chair would be preferable, but he implied it strongly when he said that he did not see a need for both legal assessors and a legally qualified chair:
“What we have sought to do within the current arrangements is persist with the model based on the legal assessor but occasionally have legally qualified chairs where that is an advantage.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 56, Q117.]
There may be cases where it is not necessary to have a legally qualified chair, but what we are trying to do, and what we will try to do on Report, is to think about the matter and bring back something that will meet the concerns raised by hon. Members and by Lady Justice Smith, without putting the new, independent adjudicator in the position where it has to have a legally qualified chair for every case.

Sandra Gidley: I may have misunderstood, but I was under the impression that if fitness to practise was applied to someone with a health concern they would be dealt with by a different panel to the one dealing with someone who is bad. In that case, it would be fairly easy to make a distinction between the two. It is not enough to have somebody who is medically qualified. For example, a surgeon may have little sympathy with mental health problems. Therefore, we need to finesse some of the Minister’s arguments.

Ben Bradshaw: In a way, the hon. Lady is making the point for me. We need to retain an element of flexibility. Amendment No. 204 would require all panel hearings to be chaired by somebody who is legally qualified.

Jeremy Wright: The Minister has given us some examples of cases in which medical expertise will be required. Will he accept that the medical expertise could quite properly come from other members of the panel and not just the chairman? What will be the case in all such hearings is the necessity to understand the standard of proof issues that have been raised. Will he also accept that that was Lady Justice Smith’s main reason for taking the view that a legally qualified chairman would be necessary? That will be true in all cases, and not just in the examples that the Minister has given.

Ben Bradshaw: I am not sure that the hon. Gentleman is right in saying that in all cases there would have to be a legally qualified chair. He ignores the fact that legal assessors would be available to the panels. It is also worth bearing in mind that Lady Justice Smith’s recommendations were informed by a particular case, which was very lengthy and complex. It would be unwise of the Committee to ignore the fact that many of these cases are more straightforward. As the GMC argues, its current system, in which it sometimes has medically qualified chairs, works very well in some of the simpler, less legally complex cases.

Stephen O'Brien: I recognise that the Minister has said that he will go away and consider the matter. He said that he might be able to bring some proposals forward on Report and we look forward to that. However, the argument is quite significant. In the evidence sessions and in Committee, we have had to focus on and think carefully about the issue. We all recognise the seriousness of the matters that the fitness to practise panels will have to deal with; there will be grades of seriousness and grades of consequence. Ultimately we are talking about the trust that we and our constituents have in the medical profession, and the trust that the medical profession has in the process—whether it will be dealt with properly and efficiently and with the requisite understanding. As my hon. Friend the Member for Rugby and Kenilworth rightly said in his intervention, there are things that will be common to all the cases, such as the matter of procedure—in other words, a legal understanding of the way that justice operates and, as Lady Justice Smith said, the need to ensure that there is capacity to have the professional skill and capability to be able to right a judgment.
If we go back to my famous and beloved Venn diagrams, that would be the outer circle. Instead of having another overlapping circle, there would be another circle within that circle for cases that require medical expertise. What we are discussing is where the default should lie. Should the expectation be that there is always a legally qualified chair and the rest should be done through advice from panel members and assessors, including the medical profession; or should the default be that we should not presume that we need the legal expertise or the qualification because we will not always need traditional procedural skills, notwithstanding the commitment to training?
It is clear that because we have sought to indicate that by picking up on where things were already heading with the proposals for pilot, because Lady Justice Smith gave some reasoned and cogent evidence and because the Minister promised to return to this matter on Report, as I hope he will, I could take the opportunity to withdraw the amendment. However, I decline to do so. I want to test the Committee so that it can be put on the record that we at least held the Government’s feet to the fire. Furthermore, we look forward to hearing how the Minister will avoid a Division on the matter on Report.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 48, in clause 93, page 46, line 14, at end insert—
‘(3A) Rules made under subsection (3) may not require a lay or professional majority.
(3B) An Order in Council may not—
(a) amend subsection (3), or
(b) make any provision that is inconsistent with subsection (4).’.
The amendment would avoid a lay or professional majority on fitness to practise panels. The Committee needs to be extremely careful that it understands the distinction between lay and professional balance on the council, which is a matter dealt with under schedule 8, and lay and professional balance on fitness to practise panels, which is the issue that we are contending with here. The amendment would keep a proper lay and professional balance on fitness to practise panels, particularly when the panel consists of more than three individuals, and would avoid too large a majority either way. The Bill does not seem to provide that guarantee. I would also be grateful if the Minister could give the Committee an idea of how he envisages that point being addressed in rules made, under subsections (2)(d) and (4), by the OHPA, and approved by an order of the Privy Council.

Ben Bradshaw: We have three problems with the amendment. First, it could preclude a simple majority decision by a panel; secondly, it could artificially inflate the costs of any fitness to practise hearing by requiring the recruitment of additional panellists solely to maintain parity between lay and professional members, and, thirdly, it should be noted that the rules of some of the regulators, such as the General Optical Council, provide for lay majorities on fitness to practise panels, which we do not think is necessarily a bad thing.

Stephen O'Brien: I shall not press the point. It was not a perfected amendment, but it made the point that we need to be careful not to remove the necessary sense of parity. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 ordered to stand part of the Bill.

Clause 94

Lists of persons eligible for membership of fitness to practise panels

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: We tabled an amendment on the clause, but it was not selected. I shall not stray from the clause stand part debate, but I would be grateful if the Minister could untangle the circularity that caused much concern and, indeed, mirth, during the oral evidence session with Lady Justice Smith. Under clause 93, a chair must be selected from the lay or professionally qualified members, and additional members must be selected from the professionally qualified list, which is defined as
“the list of persons eligible to serve as professionally qualified members provided for by section 94(1)(b)”.
As Lady Justice Smith rightly said, anybody examining the Bill moves to clause 94(1)(b), which states that those people are
“persons eligible to serve as professionally qualified members”.
That has a certain familiarity about it. As she so accurately said:
“Around we go in a circle.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
I had therefore expected a Government amendment so that we could get rid of that circularity. The last thing that we want to do is pass any law that will be held up as a laughing stock by those who have to operate it.

Ben Bradshaw: I have been advised that clause 93 refers to the professionally qualified members list as being those eligible to serve as provided for in clause 94. Clause 94(3) allows for rules to specify the requirements that a person must meet to be on that list, so the definition is not circular and we do not believe that a change is needed.

Question put and agreed to.

Clause 94 ordered to stand part of the Bill.

Clause 95 ordered to stand part of the Bill.

Clause 96

Legal assessors

Question proposed, That the clause stand part of the Bill.

Sandra Gidley: I want to pose a few questions to the Minister on legal assessors, which bring us back to the debate that we had on amendment No. 204. I am curious about what assessment has been made of the cost and effectiveness of legal assessors and how it would compare with a system in which there was automatically a legally appointed chair. Bearing in mind the arguments about time made by Lady Justice Smith, I wonder how the decision to have legal assessors has been arrived at. Some clarity about costs and effectiveness would be helpful in informing our decision, because there is no doubt that we shall return to the matter on Report.

Stephen O'Brien: I, too, would be interested in answers to those questions. Also, following our debate on amendment No. 204 to clause 93, which to my great surprise and disappointment the Government did not feel minded to accept, we know that the Government do not accept that there will be a legally qualified chair. Given that, we need to understand whether legal assessors will be on the fitness to practise panels for their whole duration, or whether they will be ad hoc, popping in and out. That is significant in deciding what we might return to on Report, so I should like to hear the Minister’s views on the importance of access to legal advice and qualified, skilled people.

Ben Bradshaw: I am grateful to the hon. Lady for raising the matter. I did not make an argument about costs in our earlier debate on amendment No. 204, which would have required all panels to have a legally qualified chair. To have that requirement and a requirement for legal assessors to be available would be unnecessarily duplicative and add costs. I think that that was one of the General Medical Council’s concerns.
In response to the hon. Lady’s question, we have not assessed the current or future costs of the legal assessors system, but we shall be doing so along with our assessment of the costs of a requirement to have legally qualified chairs. I hope to be able to say a little more about that on Report.

Question put and agreed to.

Clause 96 ordered to stand part of the Bill.

Clause 97 ordered to stand part of the Bill.

Clause 98

Procedural rules

Question proposed, That the clause stand part of the Bill.

Sandra Gidley: This clause specifies when a hearing will be made in private. Concerns were raised by the British Medical Association about the new provisions because health cases are currently heard in private. Will the Minister clarify under which circumstances a hearing may be held in private and whether that would be for health cases only or whether there would be a trigger point? I assume that that has to be decided case by case by somebody: who would make that decision and what framework would be available for them following that decision? While we all believe that openness and clarity are important in such cases, there are occasions where that has to be balanced against sensitive information that may be relevant to the individual. I am not clear how that balance will be achieved.

Ben Bradshaw: We expect the future arrangements to replicate the current ones, which, as the hon. Lady is probably aware, provide for hearings to be held in private under particular circumstances, such as for witness evidence to be protected, or for special arrangements to be put into place due to age or vulnerability. In formulating those rules, the OHPA will, of course, be informed by the current position and will to have to pay careful attention to human rights. It will also have to consult widely, including with the existing regulators on its proposals on that very important area.

Question put and agreed to.

Clause 98 ordered to stand part of the Bill.

Clauses 99 and 100 ordered to stand part of the Bill.

Clause 101

Duty to consult

Sandra Gidley: I beg to move amendment No. 238, in clause 101, page 50, line 7, after ‘seek’, insert ‘, and take account of,’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 225, in clause 102, page 50, line 27, at end insert
‘, and respond to the views of’.
No. 206, in clause 102, page 50, line 37, at end insert—
‘(3A) Before making rules the OHPA must publish a response to its consultation as set out in subsection (3).’.
No. 227, in clause 102, page 50, line 37, at end insert—
‘(3A) Before making rules, the OHPA shall respond to any representations made to them—
(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and
(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.
No. 226, in clause 102, page 50, line 39, at end insert—
‘(4A) Before approving rules, the Privy Council must note the representations received by the OHPA during the consultation as set out in subsection (3).’.
No. 228, in clause 102, page 50, line 42, at end insert—
‘( ) Before approving rules the Privy Council shall respond to any representations made to them—
(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and
(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.

Sandra Gidley: Amendment No. 238 is simple, because the clause as currently drafted, states the OHPA must
“from time to time seek the views of”
various bodies. While that is fine, I want to insert the words “and take account of”, to strengthen the clause. There are too many consultations in which the people who are consulted feel ignored. The amendment strengthens the position of the consultees.
Amendment No. 225 seeks to achieve a similar aim with a different wording. I would rather listen to the arguments of the hon. Member for Eddisbury on the remaining amendments, about some of which I was slightly curious about why he had tabled them.

Stephen O'Brien: I am slightly concerned when the hon. Member for Romsey says that she is curious about some of the drafted amendments: it sounds as if she is limbering up for not supporting us in any vote. I am sure that that is not true and that I will be able to persuade her. The clause as drafted makes the OHPA seek the views of the groups mentioned, and as the hon. Lady mentioned, her amendment makes the OHPA take account of such views.
Amendments Nos. 225, 206, 227, 226 and 228, which we have tabled, all amend clause 102. They seek to strengthen the consultation process by ensuring a full and public response from the OHPA to any consultation on rule changes. The amendments would require the published response to detail where specific views have been expressed by the Council for Healthcare Regulatory Excellence or the regulatory bodies, and that would also strengthen transparency in decision making by the OHPA. Amendments Nos. 226 and 228 specifically relate to the role of the Privy Council—this may be the point that the hon. Lady sought to have elucidated—given that it has to approve the rules because of the way that we have a trans-internal national debate.

Sandra Gidley: My curiosity was piqued by the fact that I have a hazy understanding of what the Privy Council does. In my own regulatory body, I am frequently told that we must do things because the Privy Council has told us to. I have spoken to a number of Privy Councillors who say, “I don’t know anything about that.” I have looked on the Privy Council website and it is very obscure as to who actually advises the Privy Council. It seems to be a back-door method by which the Department of Health can impose its will. If the measure is aimed at greater clarity in Privy Council decision making, I fully welcome it. I have had some difficulty in tracking the process of Privy Council decision making because the decisions do not seem open to any public scrutiny.

Stephen O'Brien: It would stray beyond the scope of the amendment to give even my extraordinarily limited understanding of the workings of the Privy Council, other than to recognise that, as I understand, “Privy” is not intended to signify that it should be withheld from scrutiny and accountability when done in the names of us all. It is a council whose first and primary loyalty is its adherence to the monarch. Because of our constitutional arrangements, the sovereign powers of law making are in Parliament rather than with the monarch, and it is effectively a form of delegated administrative implementation. Therefore, the Privy Council always acts upon constrained and tight legal advice. That is as far as I dare to take it, without getting into a debate.
The amendments were deliberately designed—and I think that this is the satisfaction that the hon. Lady seeks—to require the Privy Council to respond to any representations made by the two regulatory bodies, whose registrants are covered by the OHPA. If the Privy Council cannot give such a public statement, through this it would have the power to direct others to make statements on its behalf, or indeed through the Department. The main point is that there is transparency and accountability through the publication of these matters.
The amendments will help to ensure confidence in the new body, by adding much greater transparency to its decision making process for patients, the public and indeed doctors. It will ensure that there is clarity about any rule changes and those reasons will, I think, be critical—I dare say that that is not a point of contention. It is also important for the OHPA to ensure that it fully considers the views of the regulatory bodies that have long-standing experience of dealing with adjudication in fitness to practise cases, and have the primary interest in the effective application of their own standards.

Ben Bradshaw: This, and the next couple of clauses deal with accountability, consultation and patient and public involvement. It may be helpful if from the outset I remind the Committee about the extent of patient and public involvement in the OHPA.
There will be lay members on its board and, under clause 93, there will always be a lay member on its hearing panels. Under clause 100, the OHPA will be required to keep the public informed of its activities and, under clause 101, it will have to consult. Under clause 102, it will have to consult on drafts of its rules—specifically with bodies that appear to represent the interests of patients and other persons whom it considers appropriate, including regulatory bodies.
The amendments seek to address those matters in a number of specific ways. I stress that, as an executive non-departmental public body, the OHPA will be expected to follow best practice on consultation as set out in the Government’s code of practice. Criterion 4 of that code states that feedback should be given
“regarding the responses received and how the consultation process influenced the policy.”
Furthermore, specific statements within the criterion cover how responses should be analysed with particular attention given to representative bodies. The consultation should state when and where the summary responses will be published, an explanation should be given of how to respond to specific questions, and information should be provided on themes not covered by the question. The code of practice has proved popular with stakeholder organisations who regularly participate in consultations. The code has also been used as a model by other public sector bodies in the UK.
Amendments Nos. 226 and 228 place a requirement on the Privy Council to note representations made to the OHPA by the relevant regulatory bodies. I have already mentioned that under clause 202 there is a requirement for the OHPA to consult with other bodies, including regulatory bodies. The difficulty I have with the amendment goes back to something I said earlier: it moves away from the OHPA being independent from the professions and the regulatory bodies who use its services. The amendment does not suggest the independence that we all want for the OHPA, particularly if further representations are allowed. In addition, by providing the regulators with a secondary pathway to make representations on the rules, the consultation process is undermined because it would exclude other parties specified in legislation and others who may have responded. Any modification to the rules will be on the basis of discussions between the OHPA and the Privy Council.
In response to a question from the hon. Lady, the Privy Council plays a role in respect of certain statutory regulatory bodies and other bodies incorporated by royal charter that cover a number of professions. It also plays a role in the world of higher education. I learned something new in this briefing because in my day the President of the Council was also the Leader of the House. Now, apparently the President of the Council is Baroness Ashton.

Stephen O'Brien: There are still a number of concerns. The Minister suggested that the amendments would take us in the opposite direction to the independence that, as he said, we all want to achieve for the OHPA. My concern is that he is not necessarily seeking to achieve the independence that I have in mind, so if the hon. Member for Romsey does not press her amendment to a vote, I seek leave to have our amendment No. 227, as an indicator, put to the vote separately.

Sandra Gidley: I take on board the Minister’s comments, which highlight the ways in which the OHPA is accountable, but I still have concerns so I am happy to support amendment No. 227.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Jimmy Hood: With this, we may discuss new clause 12—Duty of co-operation with council for healthcare regulatory excellence —
‘The OHPA shall have a duty to co-ordinate its activities, and share information, with the Council for Healthcare Regulatory Excellence.’

Sandra Gidley: New clause 12 is a simple motion, which would require co-ordination between the OHPA and the CHRE. In practice, I am fairly sure that the bodies would communicate anyway, but the thrust of regulation appears to be to try to streamline and unify the mode and style of regulation. In the briefing that the CHRE provided to some of us, it said that it expected the procedures of the new body and those of the regulators to be harmonised over time, where appropriate, so in the interests of overall best practice, it would be helpful to impose a duty on both the OHPA and the CHRE to ensure that the whole matter is joined up and that any changes are made with the maximum exchange of information.

Ben Bradshaw: It seems that the intention of the motion is to extend the function of the CHRE to cover the performance of the OHPA, but it is based on the misapprehension that the OHPA is a regulatory body and, therefore, subject to oversight by the CHRE. The OHPA is an independent body with statutory functions to adjudicate on matters of fitness to practise referred to by the GMC and, at a later date, the GOC, which will provide the public and the professions with the reassurance that was called for as part of the Shipman inquiry. The CHRE’s functions, which are set out in the National Health Service Reform and Health Care Professions Act 2002, are
“to promote the interests of patients and other members of the public in relation to the performance of their functions by the regulatory bodies...to promote best practice”—
in professional regulation—
“to promote co-operation between regulatory bodies...to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to”
such principles. The Bill states:
“The main objective of the Council”—
the CHRE—
“in exercising its functions...is to promote the health, safety and well-being of patients and other members of the public.”
The CHRE does not have a remit to ensure that other bodies co-ordinate their activities with it, and as such, it would not be appropriate to impose such a duty on the OHPA. However, clause 102 states:
“Before making rules the OHPA must consult”
with a range of interested parties, including the CHRE, because it has oversight of matters relating to regulators, bodies representing the interests of patients and any other persons whom the OHPA considers appropriate.
We feel that those provisions are sufficient to ensure that the OHPA consults the CHRE, and in that light, I urge the hon. Lady to withdraw the motion.

Sandra Gidley: The OHPA plans to oversee only the medical and optical professions, and in time it would seem logical to move other professions to a similar system. It seems strange to have some professions regulated in one way and others in another. As the CHRE has oversight and frequently brings the different regulatory bodies together, the new clause would have created a useful dialogue. We will review the motion.

Question put and agreed to.

Clause 101 ordered to stand part of the Bill.

Clause 102

OHPA rules: supplementary

Amendment proposed: No. 227, in clause 102, page 50, line 37, at end insert—
‘(3A) Before making rules, the OHPA shall respond to any representations made to them—
(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and
(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.—[Mr. O'Brien.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 49, in clause 102, page 50, line 38, leave out subsections (4) to (6).
The amendment would leave out subsections pertaining to the Privy Council and is a probing amendment on the role and activity of the Privy Council, a point mentioned already. The memorandum on delegated legislation notes that Privy Council approval enables the detailed scrutiny that is required from these rules and regulations. Will the Minister detail how that scrutiny will work in practice and, in particular, how the regulatory bodies can influence that scrutiny? While the memorandum notes that this mechanism of delegated legislation has been selected to ensure consistency with the rule-making powers of all the regulatory bodies, we are dealing with a slightly different case here as this is a new body being established by the Government and somewhat distinct from the grass roots of the profession.

Ben Bradshaw: The proposal simply replicates the current arrangements for the rule-making powers of other regulators, such as the GMC or the General Optical Council. The advantage of Privy Council approval is that it can then lay Orders in Council before Parliament, thus ensuring parliamentary scrutiny. It can also vary the rules and draft to ensure that they are legally correct.

Stephen O'Brien: That is good enough for me, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Schedule 8

Extension of powers under s. 60 of Health Act 1999

Stephen O'Brien: I beg to move amendment No. 89, in schedule 8, page 152, line 6, after ‘functions’, insert ‘pertaining to regulation’.
We reach another important issue. The Bill allows an Order in Council to transfer any of the functions of the Royal Pharmaceutical Society of Great Britain or the Pharmaceutical Society of Northern Ireland. The amendment would limit that power to transferring functions pertaining to regulation. Currently, the regulation of pharmacy is shared by two bodies—the RPSGB and the PSNI. The Government have decided to split the functions of the RPSGB, leaving it with responsibilities for leadership within the profession and representation of the profession, as with the Royal Colleges, and transferring its role in regulating and inspecting pharmacy premises, pharmacists and pharmacy technicians to a new body, the general pharmaceutical council, as set out in paragraphs 1.29 to 1.36 of the White Paper, “Trust, Assurance and Safety”. As the explanatory notes put it:
“The RPSGB’s responsibilities towards pharmacists for professional leadership are potentially in conflict with its role as an independent regulator for the profession itself. The professions are taking on an increased clinical role in the treatment of patients, whereby pharmacists have the autonomy to prescribe potent drugs. Therefore, this dual responsibility does not provide sufficient reassurance to the public that there is effective independent regulation of this role. Separation of the regulatory system from that of professional and clinical leadership will allow each distinct function to focus solely on its core role...Amendments are required to section 60 of the Health Act 1999 to allow an Order made under that section to remove the statutory function of pharmacy regulation from the RPSGB and the PSNI and transfer these functions to the proposed General Pharmaceutical Council.”
That is the essence of what we are discussing here. My understanding is that the RPSGB is happy with the separation of functions, so we will not quibble with that. In its briefing, it notes that schedule 8 allows the transfer of
“all of the RPSGB’s functions”
to the General Pharmaceutical Council. Throughout the discussions between the RPSGB and the Department of Health, it was understood by both parties that only the regulatory and directly associated functions would be transferred. The current wording would allow current or future Governments to strip all functions of a membership organisation and place them with an independent body that reports to Parliament. That would place the profession’s ability to form a professional body in the hands of a Government who could remove several functions from the new body and place them within the public sector. The RPSGB understands that the Government intend to set out in secondary legislation the functions that are to be removed. The Government have expressed the aim of extending the remit of that secondary legislation to include more than regulation. Therefore, we need to be clear whether they are trying to have it both ways, or whether there is some covert agenda that has not been fully exposed.
The RPSGB maintains that, as the Bill stands, subsequent secondary legislation could extend the remit further to include most of the activities undertaken by the RPSGB. Its concerns are supported by paragraph 329 of the explanatory notes, which states:
“The primary purpose of the inclusion of subsection (2A) is to ensure that these statutory functions, which are separate but connected to the regulation of individual practitioners, are brought within the scope of section 60, so that changes can be made across all of the RPSGB’s and the PSNI’s functions where necessary.”
That is the vital phraseology.
“For example, this will facilitate the transfer of all of the RPSGB’s and the PSNI’s (subject to a decision by Northern Ireland Ministers to proceed in this way) functions under these Acts to the proposed General Pharmaceutical Council which the Government intends to create in the future by a section 60 order.”
I want to emphasis this next point:
“However, it is also envisaged that these powers will be used to modernise the requirements in relation to pharmacy premises in particular.”
While the explanatory notes and the memorandum on delegated legislation suggest that the power will be used on regulatory functions only, there is no reflection of that and hence no limit to the Secretary of State’s power in the Bill. That seems particularly obtuse when our amendment would put it simply and succinctly. Settling that issue is important not only for clarity of legislation, but because there is real concern that if the Government wield that amount of power over the RPSGB, they will severely hamper the body’s ability to criticise the Government and represent its profession when the time comes.
The Government have given no reasons to the RPSGB as to why they want to create powers beyond the scope of transferring regulatory functions. While I should note that powers under section 60 are governed by the affirmative resolution, it is important that the legislation should be as tightly formed as possible. There is no reason for the open-endedness of the drafting here. I hope that the Minister will agree and accept that the amendment has been tabled both to clarify and to assist him and his Government to be consistent with their declared approach, which is not reflected in the drafting of the Bill.

Sandra Gidley: I hope that my voice survives this debate. I should declare an interest here as a fellow of the Royal Pharmaceutical Society of Great Britain. It is a body to which I pay considerable sums each year. This measure has caused great concern. It is worth the Committee noting a little background. The Royal Pharmaceutical Society of Great Britain is unique among professional bodies, as it represents the profession and also regulates it. Sometimes those two functions have not sat easily side by side. Until fairly recently there was great resistance to changing, but it is clear from the way that modern regulation is going that a body with a high proportion of lay membership struggles to become an effective representative body. I stress that now, except in Luddite quarters, there is little or no opposition to the splitting of the functions.
There is concern, however, about which body is going to do what. Although the Bill deals only with the setting up of the General Pharmaceutical Council, the profession has also been vaguely promised that it can set up a body akin to a royal college, the shape of which is currently being consulted on in various ways. However, there have been few promises of any funding, and the Government have, in some ways rightly, taken a step back and said, “This is for the profession to decide.” Nevertheless, the joint working in past years means that some of the society’s functions have become intertwined. For example, the education department deals with the setting of standards, which falls neatly into the new GPhC’s remit, but also deals with other educational matters that are perhaps more relevant to a body akin to a royal college.
I shall not pretend that separating the functions of the two bodies will be easy, but it is not beyond the wit of man. It is only fair to the society and its members, at a time when the profession is faced with a White Paper, community pharmacists have just struggled with a large reclamation of money for category M products and people are not sure what plans the Government have for pharmacy, that there be far greater clarity about which roles are to be transferred to the GPhC and which are not. I support the amendment fully, because it would force the Government to come up with some device by which that process can be undertaken.
I am not always a fan of secondary powers, but a clear commitment to regulation or to putting a list of functions in the Bill on Report would be helpful. It would give the organisation the necessary clarity in transferring its regulatory powers to the GPhC by the allotted time. The process is complex; it is not as straightforward as just saying “These two departments will transfer to the GPhC and the others won’t.” I cannot see any reason why the Government would want to resist a change that would make the process more transparent at this early stage.

Ben Bradshaw: I have sympathy with the spirit behind the amendment, but our view is that it is based on a fundamental misunderstanding of the schedule. There is no possibility of any functions other than regulatory functions being transferred under the Bill. The scope of section 60 of the Health Act 1999, which the schedule is amending, is confined to regulation. It will therefore enable only functions relating to regulation to be transferred to the proposed new General Pharmaceutical Council. The schedule also confirms that an order under section 60 of the 1999 Act cannot be used to abolish either the RPSGB or the PSNI, as both have functions relating to matters other than professional regulation. I therefore urge the hon. Gentleman to withdraw the amendment.

Stephen O'Brien: No. We have made our case and we will press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 272, in schedule 8 , page 152, line 8, at end insert—
‘(1B) An Order in Council may not provide for any function conferred on the Privy Council, in relation to any profession to which section 60(2)(a) applies, to be exercised by a body other than the regulator of that profession.’.
I could not help noticing when you lifted your clipboard, Mr. Hood, that it says “shatterproof clipboard” at the bottom. The day that we get a Government acceptance on one of our amendments, it will shatter.
The provision clarifies how the Health Act 1999 can be amended using a section 60 order. Paragraph 4(4) of schedule 8 removes the restriction in the 1999 Act that prevents a section 60 order from being used to transfer functions exercised by the Privy Council to another person. The explanatory notes say that it is anticipated the powers under paragraph 4(4) will be used
“to transfer functions from the Privy Council to the regulatory bodies for the affected professions rather than to third parties”.
The amendment would allow such transfers to be made only to the regulator of the affected profession, and not to some other party. It would be helpful for the Minister to clarify to which other bodies he might anticipate transferring those functions or for what other reason the proposal should not be adopted. I had to double check earlier, because the hon. Lady said that she was going to press the amendment and I was baffled by that, although it was very nice to have her support.

Ben Bradshaw: The hon. Gentleman made a slightly barbed remark at the outset about our reluctance to accept amendments. With regard to one of the earlier discussions about the requirement for a legally qualified chair, although I clearly indicated that we were going to address the matter, it was still pushed to a vote. I shall leave it there.
I imagine that the concerns behind the amendment are that the appointments functions of the Privy Council could at some point be transferred to individuals such as the Secretary of State. That would be an understandable concern, and I want to assure the Committee that there is no intention to undertake such a transfer. However, there are circumstances in which the appointments functions carried out by the Privy Council might be better carried out by a body other than itself or the regulator of the profession—the Appointments Commission, for example, which we have already discussed with regard to the appointment of members and chairs to those bodies.
Another example of the sort of flexibility that might be needed is with regard to the appointments of members of councils themselves. As I have said, at the moment, the Appointments Commission makes the Privy Council appointments under delegated powers, but in the future we might want to look at where the bodies in Scotland, Wales and Northern Ireland could have a role in relation to some of those appointments. Those are the reasons for the flexibility, and I hope that in the light of that, the hon. Gentleman will withdraw the amendment.

Stephen O'Brien: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 209, in schedule 8, page 152, line 9, leave out subparagraph (3) and insert—
‘( ) In sub-paragraph (2) after “practice”, insert “or be persons included in the register of members admitted to practice”.’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 161, in schedule 8, page 152, leave out lines 9 to 12.

Stephen O'Brien: Amendment No. 209 is a probing amendment to clarify the Government’s intentions on the lay-professional balance on the councils. The Committee will recall that I made a similar distinction on the fitness to practise panels. Amendment No. 161 has the same probing purpose.
Amendment No. 209 would amend schedule 3 of the Health Act 1999. As it stands, the 1999 Act prevents the imposition of a lay majority on the regulatory bodies by secondary legislation. The amendment would ensure clarity of lay and professional members of the councils of regulatory bodies. The Bill will allow a lay majority to be imposed through secondary legislation, through a section 60 order, which is made by Her Majesty by Order in Council subject to the affirmative resolution. Under schedule 8, lay majorities could be imposed by secondary rather than primary legislation, as the current legislative framework requires. The GMC in particular argued for clarity in the evidence sessions as a way of strengthening independence from the Government, which is the dominant provider of health care in the UK, and from any single group. That independence is critical to ensure continuing confidence in the regulatory system, as we have discussed many times.
In the memorandum on delegated legislation, the Government note that the provision
“will allow councils of health professions bodies to have a lay majority, should they wish. It will be used as and when such councils request such a change”.
Will the Minister confirm whether the Government have taken a position on lay parity or majority? Will the councils truly be free to make such decisions themselves, or will the Government urge or coerce them? There is a valid concern that the Government are giving themselves the power in order to have something to do if and when there is another professional scandal—there may well be such a scandal. It is not our job to provide hooks by which the Government can say that they have done something when, in fact, the authority must rest with the panel that we are considering.

Sandra Gidley: I tabled amendment No. 161 to tease out some of the Government’s thinking on lay members. I fully understand the public confidence arguments. The old regulatory bodies had very low lay representation—a token handful of members—which did not engender any sort of public confidence. The numbers of lay members on all regulatory bodies has increased significantly, and there is a lay voice, as it were.
However, to some extent, this is smokescreen approach. No attempt appears to have been made by anyone to assess the impact of lay members. Has decision making improved as a result of the greater proportion of lay members? Do the public have greater confidence in the system? Have they even noticed what is happening in professional regulation? Alternatively, is the measure simply a sop to the chattering classes who like to talk about public representation on every board? I do not mean that pejoratively—I think there are many situations in which we would benefit from increased public involvement.
I was fully behind the concept of increased lay representation—I frequently challenged some in my own profession for being stuck in the mud on the issue. I thought that the patient voice would be more central, but, because of the nature of the people who are selected for such positions, I do not think that that aim has been achieved in the slightest, if it was ever an aim. Some lay members are extremely good; others come across as little more than professional committee sitters.
The selection of lay members and what they can bring to the process is an issue. For example, from talking to health professionals on various bodies about fitness to practise, I learned that some of them are yet to be convinced that lay members are necessarily a good thing. That is not, as I cynically thought, because lay members are harder on the health professionals. Often the reverse happens. The attitude that doctors, or whoever it might be, cover up for their colleagues is in the dark ages. The overriding aim of most health professionals who sit on a professional regulatory body is that the profession is seen in a good light. They do not want rotten apples in the barrel and to some extent they are harder on their colleagues than other people. That is why I ask whether there has been any change in decision making as a result of having lay members, and what assessment is being made of the effect they have had.
Lady Justice Smith said in her evidence that she wanted to enhance the lay voice. I think that that is absolutely right. We are required to produce an evidence base for many areas of policy these days, so I have three simple questions. What evidence is there that increased lay representation improves decision making? What assessment have the Government made of the impact of lay members and the potential impact of the lay majority? What attempt is made to balance the skills needed in an effective regulatory board?

Ben Bradshaw: We are trying to ensure that the councils of the health professional bodies can move to a lay majority should they wish to do so. Currently they cannot and to enable them to do so is a sensible freedom to give. The fact that osteopaths and opticians already do have or are moving towards lay majorities demonstrates that there is a desire among some people to do so.
In response to the hon. Lady’s question, experience of the involvement of lay members is positive. It is important to remind ourselves that the genesis of the legislation—the hon. Lady referred to Dame Janet Smith’s inquiries—is that public and patients need to be reassured that the professional regulatory bodies are not dominated by an in-built majority of professionals. That is a fundamental part of the Bill. All we are seeking to do is to ensure that there is parity on the professional bodies, which is I think supported by everybody except the British Medical Association, and that if some regulatory bodies wish to move to a majority, they can do so—at the moment they cannot. No one will force them to do it, but if that is what they want, they should have the freedom to do so. The impact of the amendments would be to take that away.

Stephen O'Brien: I have listened carefully to the Minister. As I said, it was a probing amendment and just to make sure the record is correct, I wish to state that I am grateful to the hon. Lady and her colleague, the hon. Member for Leeds, North-West, for adding their names to our amendment—No. 161. I mistakenly suggested that they should lay claim to that amendment. Considering what the Minister has said, if further issues need to be pursued, there will be more appropriate moments later.

Sandra Gidley: I noted that the Minister did not respond to what the Government’s thinking was on the future of the balance. I think it was the Foster report that said that if the bodies moved to parity they would be reviewed in a few years, whereas if they decided on a lay majority they would be left alone for a while. That signals that the Government’s thinking was to try to move to lay majorities in all cases. Did the hon. Gentleman get that impression too?

Stephen O'Brien: Perhaps not with the same distinct clarity that the hon. Lady seems to imply. It is always open to the Minister to jump up and interject at any point if he wishes to clarify something. I dare say that we will return to the matter so, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 210, in schedule 8, page 152, line 19, leave out subparagraph (2) and insert—
‘( ) In sub-paragraph (2)(d) after first “to”, insert “the investigation of”.’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 211, in schedule 8, page 152, line 23, after first ‘to’, insert ‘adjudication on’.

Stephen O'Brien: We romp on. The Health Act 1999 specifies secondary legislation cannot be used to transfer core functions of the regulatory bodies to any other organisation, so the amendments seek to enshrine in legislation the investigation of the fitness to practise of their registrants as a core function of the GMC and GOC, and that the investigation function can be transferred to the OHPA or another body by recourse to primary legislation only.
Paragraph 8(2) of schedule 3 to the 1999 Act enshrines the four functions of the regulatory bodies as
“keeping the register of members admitted to practice, determining standards of education and training for admission to practice, giving advice about standards of conduct and performance, administering procedures (including making rules) relating to misconduct, unfitness to practise and similar matters.”
The fourth function, set out in paragraph 8(2)(d), relating to issues of unfitness to practise, consists of two separate but key activities: investigation of a doctor’s fitness to practise, and the adjudication by panels of individual cases. The argument for separating the two activities was set out in the fifth Shipman report and supported by the Government. However, to ensure that the separation does not lead to the wholesale transfer of investigation as well as adjudication, the primary legislation should be explicit that one of the regulatory bodies’ core functions will remain the investigation of a registrant’s fitness to practise. That would also ensure the integrity of the four functions of the regulatory bodies.

Ben Bradshaw: It is clear from the hon. Gentleman’s words that his concern is what I thought it probably would be: to prevent the order-making power being used to transfer the role of investigations to the OHPA. I entirely agree with that point. The transfer of investigatory powers would be utterly contrary to our reason for creating the body in the first place, and I can assure the Committee that we have no intention of doing so. However, it is important that we ensure to take the right powers now, so that we are able to make the transfers that the OHPA will need. The role of the GMC and the GOC, for example, is more than just the investigation of complaints. They must consider whether the allegations are
“an impairment of fitness to practise”
against the standards that they have set; whether sufficient evidence can be obtained; whether a case needs to be referred to the OHPA for adjudication, or whether other action would sufficiently protect the public.
“Investigation” hardly covers the presentation of cases to the hearing panel. I think that Members will agree that that stretches “investigation” beyond its dictionary limits. Equally, although the OHPA has no role in carrying out investigations, its panels may, during the hearing, request the regulatory body to provide further information that might require additional investigation. One could argue that that could be defined as an investigatory function, although it is clearly part of OHPA’s role as an adjudicator.
Orders under section 60 have proved an effective means of keeping professional regulation up to date, and of responding both to changes and to public expectation of regulators. The process for section 60 orders requires public consultation on a draft of the proposed legislative changes, and the order is subject to the affirmative procedure. It seems highly unlikely that any attempt to transfer non-adjudication functions would survive such scrutiny, nor would we ever wish to attempt it. I hope that on the basis of those reassurances, the hon. Gentleman will feel free to withdraw his amendment.

Stephen O'Brien: I am grateful to the Minister, particularly for the assurances that he has placed on the record. Of course, we would always be more comfortable if they were in the Bill, but they are clear from what he has said. He also prayed in aid the limits of dictionary definitions. As someone who is reluctantly addicted to The Daily Telegraph Saturday crossword, I can assure him that many dictionaries have very different limits on true meanings. On the basis of what he has put on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Clause 104

Standard of proof in fitness to practise proceedings

Stephen O'Brien: I beg to move amendment No. 50, in clause 104, page 51, line 11, after first ‘to’, insert ‘the finding of facts in’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 51, in clause 104, page 51, line 12, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.
No. 57, in clause 115, page 62, line 30, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

Stephen O'Brien: We arrive at the proposed high-profile and significant change to the standard of proof. Amendments Nos. 50 and 51 are probing amendments to seek clarification on the role and nature of the civil standard of proof. They are, in part, an attempt to reflect on the face of the Bill the sliding scale with which the civil standard of proof is ostensibly applied within common law. Amendment No. 57 seeks a similar change to clause 115, which deals with the standard of proof in proceedings related to the registration of social workers.
Lady Justice Smith made three recommendations relevant to this discussion in her fifth report of the Shipman inquiry. As regards evidence, she said in recommendation 80:
“As part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene during FTP panel hearings and to ask questions if they feel that any issue is not being adequately explored.”
As regards standard of proof, she said in recommendation 81:
“The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction. It is arguable that the criminal standard of proof is appropriate in a case where the allegations of misconduct amount to a serious criminal offence.”
As regards reasons for findings of fact, she said in recommendation 83:
“FTP panels should be required to give brief reasons for their main findings of fact.”
The civil standard was taken up by the chief medical officer in “Good Doctors, Safer Patients”, as his first recommendation:
“In adjudicating upon concerns about a doctor’s performance, health or conduct, the standard of proof should be the civil standard rather than the criminal standard... This will reduce the number of cases where a doctor is not judged ‘bad enough’ to enter formal General Medical Council procedures but is still a cause of serious concern to professional colleagues, management or patients in a local service.”

Angela Browning: Does my hon. Friend think that it would be helpful if the Minister were to give us some guidance on how that change will be implemented, so that doctors understand that although it is a change from the criminal standard to the civil standard, the longer-term consequence could still be that a doctor is found unfit to practise? Has he had discussions with the GMC and the BMC about how doctors will prepare for such cases? Although a lot of the drivers in this part of the Bill have come from some high profile and tragic cases, in the interests of natural justice, what guidance will be given to doctors to ensure that they have the right preparation and support to ensure that they put the evidence in a timely way, given the potential long-term consequences?

Stephen O'Brien: I am grateful to my hon. Friend for that intervention. If the Minister feels it would be helpful to intervene, I am happy to give way; otherwise, I am sure that he will address the matter when he responds to the amendments. That is the test that we should apply with patients’ safety and welfare uppermost in our minds, while recognising that we are so dependent on the medical profession that we must ensure that it believes that there is trust and natural justice in this process.
As I said earlier, the civil standard was taken up by the chief medical officer in his report. That report also noted the example of New Zealand’s adjudication body, the Health Practitioners Disciplinary Tribunal, which uses the civil standard of proof. The chief medical officer noted what he saw as
“long-standing discordance in the threshold for determining an unacceptable standard of practice between the General Medical Council and the NHS employer...[which] can lead to a situation where a doctor survives a challenge to continued registration, but is not regarded as someone whom an NHS employer would trust to look after patients safely”.
He also noted that
“it is argued by some that the sanctions imposed by the General Medical Council are so devastating to an individual doctor’s livelihood and reputation that the criminal standard of proof must apply (those who advocate this cite human rights legislation when it is suggested otherwise)”.
Having said that, the chief medical officer does not make much of an argument for the civil standard beyond accepting Lady Justice Smith’s recommendation.
The Government White Paper, “Trust, Assurance and Safety”, noted the Government’s agreements with both Lady Justice Smith and the chief medical officer. Chapter 4 stated:
“The standard of proof itself refers to the level of certainty that must be achieved in order to prove disputed facts and is applied only in determining whether or not alleged facts are found proven...The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt, or they must find in favour of the health professional...Generally, the civil standard requires that the facts are judged more likely than not to be true (known as ‘the balance of probabilities’). However, the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true...The sliding civil scale is already used by the substantial majority of health regulators”
in child protection cases and employment tribunals.
Most importantly, the White Paper stated:
“There is clear legal authority that, in cases of sufficient gravity, the flexibly applied civil standard, sometimes referred to as the sliding civil standard, is virtually indistinguishable from the criminal standard. This is most likely to be applied to cases that are of sufficient gravity that a health professional might lose his or her livelihood.”
“Trust, Assurance and Safety” picked up on the theme established by Lady Justice Smith and the chief medical officer that professional regulation is a protective jurisdiction.
The White Paper also argued:
“There is currently a perception...that the criminal standard of proof...acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this results in a culture of hesitancy and reluctance to refer cases to the GMC...The perception that it is not worth taking action due to the perceived difficulties in proving allegations to the required standard of proof potentially weakens public confidence in the health regulators and threatens public health safety. It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment”.
I note with concern that, as with the creation of OHPA, the legislative move seems to be as much in response to perception as to actual fact. In an answer to a question put by me in the oral evidence session, Lady Justice Smith restated her commitment to the civil standard of proof and its location in the common law of England.
Having set out the political trajectory of the clause, it would be helpful for the Committee if the Minister were to outline the impact of the move to the civil standard, which is a point picked up by my hon. Friend the Member for Tiverton and Honiton. I want briefly to consider the standard of proof itself, in which case we can judge more carefully how long it will take to conduct FTP panels, fairness—both within and between adjudication—changes in the quality of issues referred to FTP panels and the question of defensive medicine.
On the standard of proof, it is right to draw the Committee’s attention to the written submission by the Medical Defence Union, which argues that
“the criminal standard of proof of ‘beyond reasonable doubt’ or of ‘being sure’ does not create an artificially high standard of proof as it does not equate with certainty. A reasonable doubt is the sort of doubt that might affect the mind of the person dealing with matters of importance in his own affairs”.
I believe that the relevant ruling is Walters v.the Crown 1969. There is also an interesting legal argument, which may be better pursued in another place, that the civil standard does not offer a balance of probabilities as precise as 49 to 51 per cent., as Lady Justice Smith contends. I think that that arises from rulings such as Lord Bingham in B v.Chief Constable of Avon and Somerset Constabulary 2001 and Lord Phillips in Gough v.Chief Constable of the Derbyshire Constabulary 2002.
It would be helpful if the Minister were to outline both the evidence for the move to the civil standard beyond Lady Justice Smith’s recommendation and examples where the criminal standard has led to dangerous or incompetent doctors being allowed to continue to practise. Linked to that is the question of the fair application of a sliding scale, rather than a more definite measure. Lady Justice Smith, while making it clear that she supported the move to the civil standard whether or not fitness to practise panels have legally qualified chairmen, asserted that
“a legally qualified chairman...will understand how it works.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 38.]
That poses an obvious issue of fairness between hearings, as, if the different chairs are applying the civil standard to different levels, a doctor who would be found liable under one chairman might be found not liable under another. It would be helpful if the Minister were to advise the Committee on the checks within the system, as nobody wants an increase in costly, time-consuming and psychologically wearing appeals. That is one of the key points that has arisen as result of this move.

Jeremy Wright: Does my hon. Friend agree that there may be an additional layer of complexity? We need to understand whether the sliding scale in relation to the seriousness of each case relates to the degree of professional failure or to the consequences of that professional failure, which are two separate matters and may be applied differently in different cases.

Stephen O'Brien: I am grateful to my hon. Friend, who is precisely right. The question is whether the sliding scale is geared to perception or reality—until the hearing has happened, one cannot be sure—of professional failings or the consequence of those failings. I would add a third aspect, which is the potential sanction or remedy that is within contemplation. The big question, which I put directly to Lady Justice Smith in the evidence-taking session, is how can one know what evidence will be required to prove matters of fact until and unless one knows the gravity of the matter and the range and gravity of the potential sanctions, penalties or removal of livelihood that might be at the end of the process. That is what is so difficult.
In fairness, Lady Justice Smith said in her oral evidence—one of the great benefits that we have had from that process—that she did not feel that that was something that I should be over-concerned about. She said that there has been some experience, which is part of the body of our common law, and that there is sufficient expertise. However, she linked that to having a legally qualified chair of the panel. That is why it was difficult to argue for the amendments in the order that we have discussed them today, although I understand the procedural reasons for that. In many ways, it will be helpful to go through the discussion on Report, because, as the Minister has quite fairly and properly pointed out, he has it in mind to introduce a measure on a legally qualified chair position.
I am conscious that we may be interrupted, but the issue is sufficiently important that we must ensure that we do not rush it unduly. I have made the point about fairness between hearings and between two different sets of circumstances and individuals. There has also been some question over the fairness within a hearing, particularly in relation to a standard of proof where the bar is raised ever higher as the hearing proceeds. Neither the Government briefing nor our witnesses have clarified that for us, other than the somewhat compelling assurance that Lady Justice Smith was able to command. I would be grateful, therefore, if the Minister were to touch on that specific matter in his response.
Delay is also something with which we must be concerned. It is plausible that hearings will take longer under the civil standard of proof, particularly at the beginning. Has the Minister looked at the pace at which hearings under the civil standard take place, both in our regulators and other countries, and does he expect either a temporary or permanent increase in the length of time taken? In light of that, what training will be in place for those who sit on fitness to practise panels?
There are a couple of other areas that I want to cover, and I am happy to proceed until I am drawn up short. On quantity, Sir Graeme Catto noted during the GMC’s oral evidence that while he did not think that the move to the civil standard of proof would have “any significant effect” in terms of numbers at the serious end of the spectrum,
“there may be an impact on doctors whose practice has failed to a lesser extent”.
However, he said
“any impact is likely to be small”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 51, Q103.]
What increase in the number of fitness to practise hearings does the Minister expect to arise from the move to the civil standard? We have touched on that point before, and an answer would be welcome.
Finally, I would like to touch on defensive medicine. I do not want to be unnecessarily critical—far from it—but I thought that it was slightly unfortunate that Dr. Buckman and the BMA had not gauged more effectively whether it is an issue across the profession. While he did not make the case as effectively as he might have done, there is a justified concern.

It being One o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.